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The Day Anthony Kennedy Let Us Down

Opponents of the Trump administration’s crusade to curb civil rights across the United States were dealt a crushing blow today, as Justice Anthony Kennedy announced his retirement from the Supreme Court. Kennedy was appointed by President Reagan in 1988 and, in recent years, has commanded the Court’s pivotal swing vote.

It’s difficult to overstate the impact of Kennedy’s decision, as Trump will now have the opportunity to nominate a second justice to the Court less than two years into his presidency. A conservative pick would fundamentally shift the Court’s balance of power to the right for years to come.

Trump will almost certainly choose exactly that kind of nominee. During his 2016 presidential campaign, Trump vowed to only appoint justices with an interest in overturning Roe v. Wade, the landmark abortion decision which is staunchly opposed by the radical right, and an issue on which Kennedy held the Court’s deciding voice in favor of a pregnant person’s right to choose.

Holding true to his promise to fight civil rights from within the judiciary, Trump appointed Neil Gorsuch to the bench in April 2017 — already, Gorsuch has set himself apart as one of the Court’s most conservative justices, rivaled only by Clarence Thomas.

Replacing Kennedy with another justice in the mold of Gorsuch or his predecessor, Antonin Scalia — a constitutional originalist much admired by Trump — would make Chief Justice John Roberts, appointed by President Bush in 2005, the Court’s swing vote.

Roberts is firmly to the ideological right, and would therefore cement a conservative majority and pave the way for a rollback of civil rights that is perhaps unprecedented in the history of this country.

Certainly, Kennedy wasn’t a firm ally of progressive causes; indeed, he joined the majority in Trump v. Hawaii, the case which upheld Trump’s Muslim ban — a policy driven by xenophobia, no matter which angle you examine it from. That decision, incidentally, was written by Roberts — the Court’s new “swing” justice.

However, Kennedy was also the deciding vote in a number of recent progressive victories, including in Obergefell v. Hodges, which held that all couples have the right to marry regardless of gender, and in Fisher v. University of Texas, which upheld the University of Texas’ affirmative action admissions policy.

It was Kennedy, in fact, who wrote the majority opinion in Obergefell, a truly landmark decision in the history of civil rights cases that have come before the Court.

In all of those cases, for good or for bad, Kennedy played an important role in shaping American history and policy. He understands just as well as the rest of us that had his role been occupied by a more conservative justice in 2015, marriage equality would likely not be law. By the same token, a more liberal justice in his seat would have blocked the Court’s endorsement of Trump’s xenophobic ban.

He also understands that his replacement by a more conservative justice — which seems imminent, especially given that Senate Majority Leader Mitch McConnell has already announced his intention to ram Trump’s pick through the confirmation process prior to November’s mid-term elections — would roll back the key civil rights victories that might otherwise define his legacy.

That’s why his decision to retire now — at a moment when the nation’s political scene could charitably be described as chaotic — has reasonably frustrated many on the left.

Had Kennedy waited even a few months to retire, until after the mid-term elections, he would have ensured that his replacement’s confirmation process would have been overseen by a Senate elected — at least partially — in reaction to the blatantly offensive policies that the Trump administration has rolled out over the past year-and-a-half.

By instead deciding to give up his seat with enough time for Trump to push his next radical nominee through a Senate that has shown itself, time and again, unwilling to substantively challenge even his most egregious actions, Kennedy has made the most significant decision of his career.

Maybe it’s unfair to place so much weight on one man’s retirement after such a long career, to argue that his decision to step down at this particular moment outweighs the significance of his achievements. After all, Kennedy is 81 — many people hope to retire more than a decade before reaching that age.

But then I am reminded of the energy that is required every day from marginalized people who simply want to have their own rights and safety respected equally under the law, but are not afforded the platform Kennedy occupies.

I think of parents and children violently separated at the border, held captive by an immigration system that pursues cruelty before justice. I think about Black Lives Matter protestors, required to expend their energy opposing state violence and murder.

I think about residents of Flint, Michigan, just an hour down the road from where I write this article. They have been to the state capital, and shared their stories with the world. None of this time or energy should be required of those seeking a basic right like clean water — and yet they’ve had to expend it anyway, fighting a system that still hasn’t made amends.

I think of how hard abortion activists continue to fight for the right to choose — a right that Kennedy sided with the four liberal justices on. I think of how activists will double their efforts without a moment’s notice if the Court’s stance should change — and I especially think of how it is so brutally unjust that they should potentially need to.

When I think of all those people and more who could be harmed by a more radical right-wing Court, asking Anthony Kennedy to hang on for a few more months in the hope that perhaps the next Senate will be more prepared to counter Trump’s dangerous agenda begins to seem more reasonable than unfair. It’s likely a naïve hope, sure, but a hope that Kennedy — who has sat on the Supreme Court for three decades and seen many colleagues come and go — understands well, and has intentionally chosen to give up.

These are extraordinary times. It is extraordinary in the first place that those on the left are so dismayed to see a moderate justice like Kennedy depart the Court. Begrudging an 81-year-old-man his retirement is also extraordinary, but in times when so much is at stake, sometimes those with influence and ability must look out for more than themselves, must do more than would otherwise be fairly asked of them.

In a vacuum, I’m not sad to see Anthony Kennedy go. In the Court’s recent decisions, he did great damage. He used his outsize influence to endorse religious discrimination by way of Trump’s Muslim ban. He dealt a major blow to unions in the Janus decision — issued the same day he tendered his resignation.

However, I do resent his decision to retire now, and to essentially hand Donald Trump a Supreme Court seat on a golden platter. Kennedy’s career was coming to a close — his replacement, who will doubtlessly help this administration pursue their bigoted agenda fueled by white nationalism and xenophobia, will just be getting started.

Perhaps the Democrats will find the resolve to extend the battle over Kennedy’s seat until after the mid-term elections, potentially with help from more moderate Republican Senators Susan Collins and Lisa Murkowski. I hope they find enough clarity to step outside of traditional procedure and decorum in opposing Trump’s nominee, because we have all now been thrown into the judicial fight of our lifetimes.